On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4807-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 19, 2010

Before Judges Yannotti and Chambers.

Plaintiffs Donald E. Partington (Partington) and Siobhan M. Partington appeal from orders entered by the trial court awarding defendants attorneys' fees and costs pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1. Partington also appeals from the judgment entered by the trial court on February 29, 2008, for defendant John Panariello (Panariello) on his counterclaim for malicious prosecution. For the reasons that follow, we affirm in part and reverse in part.

I.

On November 13, 2006, plaintiffs filed a nine-count pro se complaint against defendants asserting an assortment of claims. Plaintiffs alleged that they reside and own residential property in Township of West Milford (Township), adjacent to residential property owned by defendants Panariello and his wife, Martine. In count one, plaintiffs asserted that Panariello, individually and as an agent for defendant Hilltop Farm, conducted wood logging, storage, and splitting activities on the Panariello property. Plaintiffs did not, however, seek any particular claim regarding such actions.

In count two, plaintiffs alleged that Panariello constructed an accessory building on his property in violation of the Township's zoning ordinance. Plaintiffs claimed that Panariello's accessory building was a nuisance and tortiously interfered with plaintiffs' property rights, devalued plaintiffs' property and prevented plaintiffs from the peaceful enjoyment of their property. Plaintiffs further alleged that they were forced to expend monies to conceal the accessory building.

In count three, plaintiffs alleged that defendants "conspired" with each other to construct the accessory building in close proximity to plaintiffs' property "with the intent and purpose" of reducing the value of the property and preventing them from the peaceful enjoyment of the same. Plaintiffs claimed that the accessory building created a nuisance, tortiously interfered with their property rights, devalued their property, and prevented them from the peaceful enjoyment of the property. They also claimed that the structure will affect the value of and their ability to sell their property.

In count four, plaintiffs further alleged that Panariello and agents or employees of defendant Swim & Twim, LLC had installed a fence along the line between their property and the Panariello property. Plaintiffs asserted that the fence was installed after the Township denied Panariello's variance application for the accessory building. Plaintiffs stated that the fence was in poor condition, contained several different patterns and colors and constituted a nuisance.

In count four, plaintiffs also asserted that Panariello installed the fence with the intent and purpose to harass and retaliate against plaintiffs. They claimed that the fence tortiously interfered with their property rights, devalued their property, prevented them from the peaceful enjoyment of their property and will in the future affect the value of and their ability to sell their property.

In the fifth count of the complaint, plaintiffs alleged that Panariello, individually and as an agent of Hilltop Farm, was conducting wood logging, storage, and splitting activities in close proximity to plaintiffs' property. Plaintiffs claimed that Panariello did so with the intent to harass and retaliate against them, prevent them from the peaceful enjoyment of their property and "affect the value, desirability and re-sale" of the property.

In count five, plaintiffs claimed that Panariello's activities created a nuisance, tortiously interfered with plaintiffs' property rights, prevented the peaceful enjoyment of their property and "will in the future affect the property value, desirability and re-sale value of the plaintiffs' property." They asserted that Panariello's actions were willful and malicious and undertaken in reckless disregard of their rights.

In count six, plaintiffs alleged that Panariello and Swim & Trim, LLC constructed the accessory building on the Panariello property for the purpose of using the building for commercial purposes. Plaintiffs alleged that this use of the Panariello property created a nuisance, interfered with plaintiffs' property rights, devalued their property and prevented them from the peaceful enjoyment of their property. Plaintiffs further alleged that the commercial use of the Panariello property will adversely affect the future value of the property and its value for purposes of re-sale.

In addition, in count seven, plaintiffs alleged that defendant A.M. Panariello, Jr. (A. Panariello) is a business and personal advisor and had been involved in the personal and business activities of Panariello, Swim & Trim, LLC and Hilltop Farm. Plaintiffs alleged that A. Panariello conspired with Panariello to place the accessory building "closer to plaintiffs' property." Plaintiffs claimed that defendants' actions were willful and malicious and in reckless disregard of plaintiffs' rights.

In count eight, plaintiffs alleged that A. Panariello had a mortgage interest in their property. They alleged that in November 2005, A. Panariello commenced a foreclosure action against them for the non-payment of real estate taxes, despite being told that the real estate taxes would be paid with proceeds of a refinancing. Plaintiffs alleged that Panariello, his wife, A. Panariello and Alice Panariello conspired to institute the ...

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